Advocating for a community order as an alternative to custody

The prisons are at capacity and new initiatives swirl around, but one solid answer already exists – the community order as a direct alternative to custody. There are several reasons why this common sentence is under-used as an alternative to custody, particularly by the lay bench. The law and the sentencing guidelines desperately need some ‘plain English’ interpretation within defence submissions to flag up the obligations and the discretions for the bench.

This is to combat the fast but flawed process that can so easily happen. It is the partially legal, but largely common-sense approach which is simply to ‘follow the sentencing guidelines’ (s.59 Sentencing Act 2020). After meticulous consideration of the factors in the specific offence guideline, the result is clearly set out, e.g. 26 weeks custody. Almost done. Then comes the moment of discretion – should the custodial period be imposed forthwith or be suspended? Suspension is obviously more attractive if there are suitable community order requirements to include in the order.

Too often, the sentencing task is completed on this basis. Common-sense would say that the guideline has taken the offence past the post of a fine, and past the post of a community order - they are less onerous and for less serious versions of the offence. So, how do we make sure that the law trumps common sense, so that the community order is properly considered even when the guideline clearly states 26 weeks?

The guideline firmly sets the ‘threshold’ of custody, but this generates the legal obligation, as set out in the statute in bold ‘Threshold for imposing discretionary custodial sentence’ (s.230(2) Sentencing Act 2020). The statutory hurdle is to consider whether a fine or community order can be ‘justified’ instead.

Justification for a community order at the custody threshold

When can a community order realistically be justified at this level? I suggest that justification is tested by three steps.

1. It meets the identified sentencing purpose - The court is required to ‘have regard to the purpose(s) of sentence’ (s.57 Sentencing Act 2020). A duty and not a discretion, and a clear stage to properly address. The mitigation in the majority of cases at this level will cry out for rehabilitation. Something that is seldom achieved in custody!
2. Suitable requirements are proposed - The task of the pre-sentence report is to assist the court to form its opinion on the ‘most suitable’ requirements for the individual (s.208(3) Sentencing Act 2020). A complex task for probation to undertake, and so often, the proposed requirements match perfectly to the sentencing purpose (s).
3. The order is proportionate - To justify a proportionate community order at custody level, the order must arguably be at high level. Whilst the norm might be three requirements, it is the level of restriction of liberty that counts and one onerous requirement may carry that proportionality.

On this logical basis, it becomes very difficult to understand how the courts reach the stage of so many suspended sentence orders with multiple requirements at high level. Surely, a community order should have been imposed by properly applying the threshold test, identifying the purpose and matching suitability to create a high level order.

A common problem – the punitive requirement

The law primarily requires a community order to contain a ‘requirement for the purpose of punishment’ (s.208(10) Sentencing Act 2020). Case law has determined that a rehabilitation activity requirement and alcohol treatment do not qualify (R. v. Gregson (2020) EWCA Crim 1529). The reality is therefore limited to unpaid work, curfew or alcohol abstinence.

Some defendants will simply not be suitable for that limited menu of requirements. For others, it is well worth considering the remainder of the legislative duty. The court may impose a fine instead. Alternatively, the court may consider that there are exceptional circumstances relating to the offence or the offender which would make it unjust – either to impose a fine, or a punitive requirement.

As stated earlier, the court has a duty to consider its sentencing purpose, and if that purpose is pure rehabilitation which brings a higher number of rehabilitation activity days, it is surely arguable that it creates an exceptional circumstance for a vulnerable person to face an additional penalty. Vulnerability takes many forms, but health issues and a lack of maturity may squeak into the suitability category for unpaid work, but they are arguably facing a disproportionate additional penalty. If means are stretched, particularly with existing fines the exceptional circumstances may also apply to avoid the fine.

A purely rehabilitative community order, even as an alternative to custody is available if exceptional circumstances prevent a punitive requirement or a fine.

Sentencer’s preference for the teeth of a suspended sentence

The pronouncement of ’26 weeks custody’ followed by suspension may well sound more dramatic than ordering a ‘community order which is a direct alternative to custody’. Importantly, the bench need to be clear that the consideration of suspension can only follow if forthwith custody is reached. A community order must be properly considered first.

The pause button to ensure the serious consideration of a community order may need the reminder to the bench, and your client, that the full custodial period of 26 weeks is available on breach if re-sentenced. Real teeth to satisfy the sentencer. Real hope for your client. And … one less for the prison population.